United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG, UNITED STATES MAGISTRATE JUDGE
matter comes before the court on Defendant Stonebridge
Hospitality Associates, LLC's (“Defendant” or
“Stonebridge”) Motion for Summary Judgment (or
“Motion”), filed August 9, 2019. [#50]. The
undersigned considers the Motion pursuant to 28 U.S.C. §
636(c) and the Order of Reference for all purposes dated
August 29, 2018, [#15], and concludes oral argument will not
materially assist in the resolution of this matter.
Accordingly, having reviewed the Motion and associated
briefing, the applicable case law, and the entire record, I
GRANT the Motion for Summary Judgment for
the reasons stated herein.
civil action arises out of allegations by Plaintiff Mark
Jackson (“Plaintiff” or “Mr.
Jackson”), a former employee of Stonebridge, that
Defendant discriminated against him because he is
African-American and retaliated against him for opposing
discrimination in the workplace. See generally [#1;
#4; #6]. Believing Defendant's conduct violated his civil
rights under Title VII of the Civil Rights Act of 1964
(“Title VII), 42 U.S.C. §§ 2000e et
seq., Plaintiff filed a charge of discrimination with
the Equal Employment Opportunity Commission
(“EEOC”) on or about February 8, 2017.
See [#6 at 2]. The EEOC dismissed Plaintiff's
charge of discrimination and retaliation and issued him a
Notice of Right to Sue letter on or about March 7, 2018.
See [id.]. On June 6, 2018, Plaintiff
initiated this action by filing his pro se Complaint and
asserts claims under Title VII for disparate treatment based
on race (“Claim 1”) and for retaliation
(“Claim 2”) as well as a state law claim for
breach of an implied contract of employment (“Claim
3”). See [#1; #6].
Parties proceeded through discovery, and Stonebridge filed
the instant Motion for Summary Judgment on August 9, 2019,
arguing for summary judgment in its favor on all of Mr.
Jackson's claims. See [#50]. Mr. Jackson has
since responded in opposition to the Motion for Summary
Judgment and Defendant replied. See [#52; #54]. This
matter is set for a four-day jury trial to commence on
February 10, 2020. Because the Motion is now ripe for
consideration, I consider the Parties' arguments below.
to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A dispute is genuine if there is
sufficient evidence so that a rational trier of fact could
resolve the issue either way. A fact is material if under the
substantive law it is essential to the proper disposition of
the claim.” Crowe v. ADT Sec. Servs., Inc.,
649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and
quotation marks omitted). It is the movant's burden to
demonstrate that no genuine dispute of material fact exists
for trial, whereas the nonmovant must set forth specific
facts establishing a genuine issue for trial. See
Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir.
2010). And the court will “view the factual record and
draw all reasonable inferences therefrom most favorably to
the nonmovant.” Zia Shadows, L.L.C. v. City of Las
Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016).
applying this legal standard, the court is mindful that Mr.
Jackson proceeds pro se and thus liberally construes his
filings. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). But the court does not act as his advocate and
applies the same procedural rules and substantive law to Mr.
Jackson as to a represented party. See Murray v.
City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir.
Evidence on Summary Judgment
the movant demonstrates an absence of evidence supporting an
essential element of the nonmovant's claim, the burden
shifts to the nonmovant to show that there is a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986). To satisfy this burden, the nonmovant must point
to specific facts in an affidavit, deposition, answers to
interrogatories, admissions, or other similar admissible
evidence demonstrating the need for a trial. See Gross v.
Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir.
1995); cf. Fazio v. City & County of San
Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997)
(“[A] mere ‘scintilla' of evidence will be
insufficient to defeat a properly supported motion for
summary judgment; instead, the nonmoving party must introduce
some ‘significant probative evidence tending to support
the complaint.'” (quoting Anderson v. Liberty
Lobby, 477 U.S. 242, 249, 252 (1986))). Conclusory
statements or those based on speculation, conjecture, or
surmise provide no probative value on summary judgment,
see Nichols v. Hurley, 921 F.2d 1101, 1113 (10th
Cir. 1990); nor may the nonmovant rely on “mere
reargument of his case or a denial of an opponent's
allegation, ” see 10B Charles Alan Wright, et
al., Federal Practice and Procedure § 2738 at 356 (3d
onus is therefore on the nonmovant to point to competent
summary judgment evidence demonstrating a need for trial.
See Bones v. Honeywell Int'l, Inc., 366 F.3d
869, 875 (10th Cir. 2004). The court cannot and does not
weigh the evidence presented or determine the credibility of
witnesses, see Fogarty v. Gallegos, 523 F.3d 1147,
1165 (10th Cir. 2008), and may consider only admissible
evidence, see Johnson v. Weld County Colo., 594 F.3d
1202, 1209 (10th Cir. 2010) (disregarding hearsay on summary
judgment when proper objection to its use was before the
court and no exception applied). While the evidence need not
be in a form that is admissible at trial (e.g.,
affidavits are often inadmissible at trial on hearsay
grounds), the substance must be admissible at trial.
See Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir.
2016); accord Hasan v. AIG Prop. Cas. Co., 935 F.3d
1092, 1098 (10th Cir. 2019) (“Although a party may
submit an affidavit or declaration in opposing summary
judgment, the content must be based on personal knowledge and
must set forth facts that would be admissible in
evidence.” (internal quotation marks omitted)).
“To determine whether genuine issues of material fact
make a jury trial necessary, a court necessarily may consider
only the evidence that would be available to the jury.”
Argo v. Blue Cross & Blue Shield of Kansas,
Inc., 452 F.3d 1193, 1199 (10th Cir. 2006).
Undisputed Material Facts
court draws the following undisputed material facts from the
or about February 3, 2016, Defendant hired Mr. Jackson, an
African-American male, as a Social Hour Attendant at
Defendant's Homewood Suites, a hotel located in Denver,
Colorado. See [#50-1 at ¶¶ 3, 8; #50-3 at
58:18-20; #52 at 287, ¶ 3].
2. As a
Social Hour Attendant, Mr. Jackson's duties included
preparing meals for the social hour-a two-hour period in the
evenings when guests of the Homewood Suites could eat at a
buffet. See [#50-3 at 60:12-61:1; #52 at 287, ¶
Jackson worked approximately 30 hours per week, including
four shifts of seven hours beginning at 2:00 p.m., though he
sometimes worked longer than his scheduled seven hours.
See [id. at 61:7-62:7, 63:16-64:5].
Kevin Smith, an African-American male, was the Food and
Beverage Manager for Homewood Suites and was Mr.
Jackson's immediate supervisor; Mr. Gustavo de Almeida, a
Hispanic male, was the Assistant General Manager for Homewood
Suites and was Mr. Smith's immediate supervisor; and Mr.
Tom Sprankle was the General Manager of the Homewood Suites.
See [#50-1 at ¶¶3, 5-7; #50-3 at 65:15-18;
#52 at 110:23-111:7].
or about Mr. Jackson's first day of employment, he
completed Stonebridge's New Hire Orientation, which
included an overview of Stonebridge's personnel and
safety policies, and received and reviewed Stonebridge's
Associate Handbook. See [#50-1 at ¶¶ 9-10;
#50-2; #50-3 at 66:6-14, 66:24-67:6, 67:22-24, 68:9-18,
69:5-7; #50-4 at 6].
Stonebridge's Associate Handbook (the
“handbook”), which Mr. Jackson contends
constitutes an employment contract with Stonebridge,
provides, in pertinent part,
EMPLOYMENT WITH STONEBRIDGE COMPANIES IS AT-WILL. ASSOCIATES
HAVE THE RIGHT TO END THEIR WORK RELATIONSHIP WITH THE
COMPANY, WITH OR WITHOUT ADVANCE NOTICE AND FOR ANY REASON.
THE COMPANY HAS THE SAME RIGHT.
THE LANGUAGE USED IN THIS HANDBOOK AND ANY VERBAL STATEMENTS
MADE BY MANAGEMENT DO NOT CONSTITUTE AN EXPRESS OR IMPLIED
CONTRACT OF EMPLOYMENT. NOR DO WE GUARANTEE EMPLOYMENT FOR A
SPECIFIC LENGTH OF TIME OR NUMBER OF HOURS. ANY CONTRACT OR
AGREEMENT REGARDING THE TERMS OF YOUR EMPLOYMENT MUST BE IN
WRITING AND SIGNED BY THE PRESIDENT, THE COO, OR APPOINTED
ASSOCIATE OF THE COMPANY.
THE VIOLATION OF ANY PROCEDURE, RULE, REGULATION OR CODE MAY
RESULT IN DISCIPLINARY ACTION, UP TO AND INCLUDING
[#50-2 at 5].
handbook warns employees that seven absences or seven
instances of “lateness” “in a twelve month
[sic] period are considered excessive and may be grounds for
termination”; it also prohibits Stonebridge employees
from having personal visitors or taking personal calls while
at work. See [id. at 6].
Approximately three weeks after Mr. Jackson began working for
Defendant, he injured his back at work while attempting to
put trash in a trash can, causing him to miss several days of
work. See [#50-1 at ¶ 11; #50-3 at 69:14-72:11;
#52 at 287, ¶ 4].
Plaintiff received medical treatment for his injury pursuant
to Stonebridge's workers compensation coverage.
See [#50-1 at ¶ ...